Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23185/94

by Ismet ASKER

against Turkey

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 December 1993

by ismet Asker against Turkey and registered on 7 January 1994 under

file No. 23185/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in

1920 or 1933 and resident at Melikahmet Cd., Lülebey mh. He is

represented before the Commission by Professor Kevin Boyle and

Ms. Françoise Hampson, both of the University of Essex.

The facts of the present case as submitted by the applicant may

be summarised as follows.

The applicant was resident at Islam village, Kulp. In the winter

of 1992, the security forces sent a list of names to ten families

living in the hundred household village. They were told, "You will

leave for good by the summer." At one point, the forces said that they

would not burn down things after all. The applicant does not

understand why that changed.

On the morning of 16 June 1993, at around 07.00-08.00 hours,

about 400 soldiers organised a raid on Islam village on the orders of

the Kulp District Gendarme station Commander, Recep Cömert. During the

operation, the forces set fire to the applicant's two-storey, eight

roomed house. They gave no grounds for doing so. Just before, a

soldier had told the applicant to go and get his things out of his

house. He and his wife went inside and started gathering up their

things. They realised the house had been set on fire and they rushed

out of the back door. They waited on the main road. In the meantime,

the forces frightened villagers, who had come to try to put out the

fire, with their firearms and they prevented them from putting out the

fire. The forces waited until the house had completely burnt down.

They then burnt down the house of K.S., a little further on, together

with all the household effects. The forces then left.

On 25 June 1993, the applicant presented a petition to the Kulp

District Governorship. Since the applicant does not speak Turkish, the

District Governor asked him through an interpreter whether there was

anyone he knew amongst the soldiers who came to the village. He said

that he knew Captain Recep Cömert. The District Governor then said,

"All right. I am receiving the petition. You can go." The applicant

has heard nothing further about his petition. The petition indicated

the losses suffered by the applicant.

Ten days after his house was burned down (i.e. on 26 June 1993),

soldiers, again under the command of Captain Recep Cömert, organised

another raid on the village. That time, the forces burnt down the

homes of S.T., A. K.E. and K.S. and then burnt down the water-powered

flour mill, run by N.E., N.S., K.S. and H.E. No one was taken into

custody. Captain Recep turned to the villagers and showered them with

threats, saying, "All of you will leave this village. Otherwise next

time we come, we shall burn you all together with your houses." They

then left the village.

It is believed that Captain Recep Cömert has been moved to

Mersin. A transfer to a place on the coast and outside the area

where there is fighting is usually seen as a reward for services

rendered.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 6, 8,

13, 14 and 18 of the Convention and Article 1 of the First Protocol.

As to Article 2, the applicant complains of the life-threatening

attack to which he was subjected by agents of the State, of the threat

to life occasioned by gross recklessness on the part of agents of the

State, of the lack of any effective system for ensuring protection of

the right to life and of the inadequate protection of the right to life

in domestic law.

As to Article 3, he complains of an inhuman and degrading

practice of clearing villages, a form of collective punishment, and of

discrimination on grounds of race or ethnic origin.

As to Article 5, he complains of the complete lack of security

of the person.

As to Article 6, he refers, on the one hand, to the impossibility

of challenging the deprivation of property before it took place, which

represents a denial of access to court for a determination of civil

rights and, on the other hand, to the failure to initiate proceedings

before an independent and impartial tribunal against those responsible

for the attacks and destruction, as a result of which he cannot bring

civil proceedings arising out of these events, which is also a denial

of effective access to a court.

As to Article 8, the applicant complains of the destruction of

his home and family life.

As to Article 13, he refers to the lack of any independent

national authority before which his complaints can be brought with any

prospect of success.

As to Article 14, he considers that he has been subject to

discrimination on account of race or ethnic origin in the enjoyment of

his rights under Articles 2, 5, 6 and 8 of the Convention and Article

1 of the First Protocol.

As to Article 18, he alleges that the interferences in the

exercise of his Convention rights were not designed to secure the ends

permitted under the Convention.

As to Article 1 of the First Protocol, he complains of the

destruction of his home and possessions.

As to the exhaustion of domestic remedies, the applicant

considers that there is no requirement that he pursue alleged domestic

remedies. In his opinion, any alleged remedy is illusory, inadequate

and ineffective because

(a) the operation which led to the threat to life and

destruction at issue in this case was officially organised,

planned and executed by the agents of the State ;

(b) there is an administrative practice of non-respect of the

rule which requires the provision of effective domestic remedies

(Article 13) ;

(c) whether or not there is an administrative practice,

domestic remedies are ineffective in this case, owing to the

failure of the legal system to provide redress ;

(d) alternatively, the applicant has done everything he can do

to exhaust domestic remedies by submitting a petition to the

District Governor ; the fact that it has yielded no result

confirms the ineffectiveness of any alleged remedy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced before the Commission on 15

December 1993 and registered on 7 January 1994.

On 5 April 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 8 July 1994. At the

Government's request, this time-limit was subsequently extended until

8 August 1994.

By letter of 6 September 1994 the Commission's Secretary pointed

out to the Government that the period for the submission of the

Government's observations had expired long ago and that no extension

of that time-limit had been requested. It was added that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its October or November session.

No observations have been submitted by the Turkish Government.

THE LAW

The applicant complains of violations of Articles 2, 3, 5, 6, 8,

13, 14 and 18 (Art. 2, 3, 5, 6, 8, 13, 14, 18) of the Convention and

Article 1 of the First Protocol in connection with a raid by security

forces on the applicant's village, in the course of which the

applicant's house was burned down.

The Government, which have been informed that the application was

considered for inclusion in the agenda of the Commission at its present

session, have submitted no observations on the admissibility or merits

of the application.

It is the normal practice of the Commission, where a case has

been communicated to the respondent Government, not to declare the

application inadmissible for failure to exhaust domestic remedies,

unless this matter has been raised by the Government in their

observations. The Commission considers that the same principle should

be applied where, as in the present case, the respondent Government

have not submitted any observations at all.

It follows that the application cannot be rejected on the ground

that the domestic remedies have not been exhausted.

Moreover, the Commission is of the opinion that the application

raises important questions of fact and law which cannot be resolved at

the stage of the admissibility but require an examination on the

merits. The application cannot therefore be considered manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for inadmissibility has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ASKER v. TURKEY

ASKER v. TURKEY